Codifying Customary Laws?

The need for a Naga Jurisprudence

 

Dr. Asangba Tzüdir

With modernization and development of societies, the traditionally instituted customary laws poses certain challenges especially in the face of evolving political and legal systems vis-à-vis delivering justice. In the face of this, concerns have been raised on the issue of codification of customary laws and practices, and also the fact that a special provision is granted to the state of Nagaland under Article 371 A. This also makes the case for codification more challenging, and with ‘modern’ legal systems, the place of customary laws also seems to have become rather ‘ambiguous.’

 

Is codification of Naga customary laws and practices (customs) necessary? Defensively, one may say that the codification of customary laws and practices into ‘Acts’ defeats the very nature and meaning of preservation and protection of customary laws and practices. Consequently, when a customary law or practice is codified it becomes a law, the interpretation of which will be generally done by the lawyers and courts. Thus, the judge or the lawyer will hold the authority to interpret and judge rather than through the traditional customary courts or traditional wisdom. On the flip side, traditional customary laws and practices in its modern setting often leaves sufficient scope for the arbitrary application of customary law by vested interests as no two cases would be dealt with in the spirit and the eye of law because the judgment is left to the subjective opinion of the traditional customary court. Thus, such intricacies call the need for Naga jurisprudence if the Naga Customary laws and practices are to be codified.

 

Jurisprudence is a Latin for jurisprudentia where juris is the genitive form of jus meaning “law”, and prudentia which means “prudence.” Jurisprudence or legal theory is the theoretical study of law and it has been widely engaged by philosophers since the 20th Century and also by social scientists. Scholars of jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.

 

In the Naga context, to develop a Naga jurisprudence requires a broad analysis of the various traditional spectrum of all the Naga tribes in relation to Customary Laws and practices. Immediate challenge thus, will be to address the various cultural and legal concepts of each Naga tribe. This also gives rise to problems of interpretation while seeking a Naga jurisprudence. A case in point, how would justice be interpreted or delivered on matters of criminal offences, civil disputes, land and water disputes, on matters of rights and inheritance, adoption, etc. This will be further compounded by the ‘geo-politics’ of village, towns and cities and issues of applicability and contestation especially in the modern turn. Like this is not enough, the real blot comes from the issues associated with inter and intra tribe. Just looking at the aspect of marriage, how would a Naga jurisprudence be developed for all the tribes vis-à-vis inter tribe and intra tribe? Which customary law or practice should be considered in the case of, say, a Ao-Konyak marriage? These and many more will form the core considerations while framing a Naga jurisprudence.

 

In tune with the changing times and realities of the justice and legal system, the need for codification of the Naga Customary laws and practices is felt but is not advisable to codify unless there is a proper Naga jurisprudence which is the most challenging aspect. Easier said, being ‘safeguarded’ provisionally under Article 371 A of the Indian Constitution, one may say that codification of Naga customary laws and practices should be kept limited to the Constitutional recognition and leave the functioning within the ambit of the customary laws at the disposal of the traditional customary courts. Even then, the question of whether it will deliver justice justifiably remains a contentious component.

 

What is also important is that, the various facets of customary laws or practices which require a rethought, or those aspects which may no longer find practical application should be discarded so also the traditional courts or authority council which cannot provide justice should be done away with rather than codifying it. In foresight, it is better to be relieved of things that no longer hold relevance.

 

(Dr. Asangba Tzudir is a Freelance Research and Editing Consultant. He contributes a weekly guest editorial to The Morung Express. Comments can be mailed to asangtz@gmail.com)